Coming straight to the nub of the matter, let me begin by first and foremost pointing out that upholding the constitutional validity of criminal defamation provisions in the IPC drafted during the colonial era, the Supreme Court on May 13, 2016 said these do not muzzle free speech and asked politicians Rahul Gandhi, Subramanian Swamy and Arvind Kejriwal and others to face trial for alleged statements harming others reputation. Bigger the stature of a person making the defamatory statement, the graver the offence, the court said. Every person should think hundred times before saying anything that harms the reputation of another person.

While clearly declining to de-criminalise defamation, a penal offence punishable with two years in jail and a monetary penalty, the Supreme Court on May 13 said that right to free speech cannot mean that a citizen can defame the other. A Bench of Justices Dipak Misra and PC Pant in this notable case titled Subramanian Swamy v. Union of India, Ministry of Law and others in Writ Petition (Cri.) No. 184 of 2014 had approved the constitutional validity of Sections 499 and 500 (criminal defamation) in the Indian Penal Code, underlining that an individual's fundamental right to live with dignity and reputation cannot be sullied solely because another individual can have his freedom. This clearly implies that no individual can exercise his freedom of speech and expression to sully the reputation of another person without any real cause.

Position of the persons making the imputation would regulate the standard of care and caution, the Bench said as it favoured retention of criminal defamation as an option to redress hurt caused to the reputation of a constituent. The Bench minced no words in stating unequivocally that, Right to free speech cannot mean that a citizen can defame the other. Protection of reputation is a fundamental right. It is also a human right. Cumulatively, it serves social interest...Each is entitled to dignity of person and of reputation. Nobody has a right to denigrate others' right to person or reputation. Very rightly said!

The Bench also made it very clear that, Protection of reputation is a fundamental right. It is also a human right. Cumulatively, it serves the social interest...it is not a restriction that has an inevitable consequence which impairs circulation of thoughts and ideas. In fact, it is control regard being had to another person's right to go to court and state that he has been wronged and abused. He can take recourse to a procedure recognised and accepted in law to retrieve and redeem his reputation. Each and every person must always bear this in mind. It just cannot be ignored as this has come from the highest court of India – Supreme Court!

Ratifying the validity of the penal provisions, the Supreme Court also thus paved the way for the prosecution of Congress Vice-President Rahul Gandhi, BJP MP Subramanian Swamy and Delhi CM Arvind Kejriwal. They all had sought de-criminalisation of defamation by filing petitions separately. But their contention was not accepted.

All these 3 politicians had been issued summons on complaints accusing them of criminal defamation. Subsequently, they moved the top court claiming the law unreasonably constricted the freedom of speech and that defamation had to be only a civil law remedy. The Bench had stayed their prosecution.

On May 13, it vacated the restraint order and said that the leaders will have eight weeks to challenge the summons in accordance with the existing legal regime after which the trial courts could go ahead with their prosecution. Disagreeing with their argument that criminal defamation must be struck down because it curtailed their right to free speech, the bench said that reputation of a person could not be allowed to be crucified at the altar of the other's right of free speech.

The court refused exhortations that penalization of defamation is past its time, and the nation now risks the danger of being reduced to a frozen democracy. The Bench said the reputation of an individual was an equally important right and stood on the same pedestal as free speech. The court said it would be a stretch to say that upholding criminal defamation in modern times would amount to imposition of silence.

The Bench made it crystal clear that, Right to freedom of speech and expression is not absolute. It is subject to imposition of reasonable constrictions...there is a correlative duty not to interfere with the liberty of others. Each is entitled to dignity of person and of reputation. Nobody has a right to denigrate others' right to person or reputation...the legislature in its wisdom has not thought it appropriate to abolish criminality of defamation in the obtaining social climate. There can be no denying this. We must be all conscious of these reasonable constrictions that right to freedom of speech and expression is subjected to.

Underscoring that criticism was not defamation, the Bench accepted their plea that a trial court must be very careful in scrutinising a complaint before issuing summons in a criminal defamation case. But it held that defamation would, in fact, be a form of reasonable constriction on one's right of free speech. The Bench while underlining that the concept of fraternity under the Constitution expected every citizen to respect the dignity of the other held that, One is bound to tolerate criticism, dissent and discordance but not expected to tolerate defamatory attack...liberty to have a discordant note does not confer a right to defame the others. The dignity of an individual is extremely important. There can be no disputing this!

The Bench also categorically rejected an argument that defamation could become a criminal offence only if it incited to make an offence. It said that defamation had its own independent identity, which has enabled the state to maintain a balance between fundamental rights. This must be always borne in mind.

The Bench also pointed out the distinction between Sections 499 and 500 on one hand and Section 66A (prosecution for obscene social posts) of the Information Technology Act on the other, saying the latter was struck down by the Apex Court on the ground of vagueness and procedural unreasonableness. It held that, Once we have held that reputation of an individual is a basic element of Article 21 of the Constitution and balancing of fundamental rights is a constitutional necessity and further the legislature in its wisdom has kept the penal provision alive, it is extremely difficult to subscribe to the view that criminal defamation has a chilling effect on the freedom of speech and expression.

While craving for the exclusive indulgence of my esteemed readers, let me enlighten them here that Rahul Gandhi is facing defamatory charges for saying in an election rally that the RSS was behind the killing of Mahatma Gandhi. Arvind Kejriwal is facing defamation for allegedly using derogatory terms against Transport Minister Nitin Gadkari, and Subramanian Swamy is facing similar case in Tamil Nadu. The Apex Court was asked to settle the debate over the tussle between two Constitutional provisions – right to free speech under Article 19(1)(a) and right to live with dignity under Article 21.

For my esteemed readers exclusive benefit, let me also reveal here that this is the first authoritative pronouncement on the validity of defamation defined under IPC Section 499 made punishable with a maximum jail term of two years under Section 500. Hearing the best of legal minds in the country on various aspects of the issue, the Bench of Justices Dipak Misra and Prafula C Pant concluded that the freedom of speech is not absolute and could be restricted when it involves harm to somebody's reputation. Rightly said.

Attorney General Mukul Rohatgi along with Additional Solicitor general PS Narasimha, submitted that Article 19(1)(a) was meant to advance public debate and discourse and not to make speech laden with harmful intent and a reckless disregard of one's reputation. Agreeing with this view, Justice Dipak Misra, writing the judgment for the Bench said, Dignity of a person is an affirmation of his/her constitutional identity and the individual reputation is constitutionally protected as a normative value of dignity. Laws relating to initiation of civil as well as criminal action are, therefore, permissible and withstand assail on their constitutionality. In coming to this conclusion, the bench was assisted by two very eminent and senior lawyers of Apex Court – K Parasaran and TR Andhyarujina who were both appointed as amicus curiae in the matter.

Justice Dipak Misra who authored the 268-page verdict stated categorically that, Mutual respect is the fulcrum of fraternity that assures dignity. It does not mean that there cannot be dissent. It does not convey that all should join the chorus or sing the same song. Indubitably not. One has a right to freedom of speech and expression. One is also required to maintain the idea of fraternity that assures the dignity of the individual.

The Supreme Court said a free press is the heart and soul of political intercourse and is a public educator but this freedom is not absolute and cannot be used by the media to cause injury to an individual's precious reputation. In its judgment upholding the constitutional validity of criminal defamation, a Bench of Justice Dipak Misra and PC Pant re-visited the Apex Court's judgments on the importance of media's freedom of speech and expression in a vibrant democracy. It even calls the media a public educator, making formal and non-formal education possible at a large scale, particularly in the developing world.

But in the same vein the court also held that the press has to also observe reasonable restrictions and its purpose is to advance the public interest by publishing facts and opinions without which a democratic electorate cannot make responsible judgments. While in one breath saying that freedom of speech and expression is regarded as the first condition of liberty, the court in the next reins in this liberty by cautioning that free speech is not an absolute value under our Constitution. The court agrees that the voice of dissent or disagreement has to be respected and not to be scuttled as unpalatable criticism.

The judgment notes the arguments of senior advocate Sanjay Hegde who submitted that criminal defamation in terms of the press has a chilling effect leading to suppressing a permissible campaign. Hegde argued that, The threat of prosecution alone is enough to suppress the truth being established, and also the investigating journalism which is necessary in a democracy. But the judgment also gives equal space to senior advocate MN Krishnamani who argued that journalists are in no better position than any other person. Also, it was held that, (It is) difficult to perceive that (the) provision on criminal defamation has chilling effect on right to freedom of speech and expression. It was also added that the law served social interest.

Krishnamani argued that, They have no greater freedom than others to make any imputations or allegations sufficient to ruin the reputation of a citizen. A news item has the potentiality of bringing doomsday for an individual. Editors have to take the responsibility of everything they publish and to maintain the integrity of published records. It can cause far reaching consequences in an individual and country's life. The court records submissions that reckless defamatory comments are unacceptable as the press has great power in impressing minds.

The court's ruling came in response to more than two dozen petitions, including from BJP leader Subramanian Swamy, Congress Vice-President Rahul Gandhi and Delhi Chief Minister Arvind Kejriwal – all of whom face criminal defamation cases. The petitioners still have the option to ask the Supreme Court to review its verdict or refer the matter to a constitution bench.

We all saw how Oommen Chandy in April sues CPI(M) veteran VS Achutanandan for claims during poll rallies that the Kerala CM Chandy faced 31 corruption cases. In December 2015, Finance Minister Arun Jaitley files a case against Delhi CM Arvind Kejriwal, who alleged discrepancies in DDCA accounts when Jaitley led the cricket body. In March 2014, RSS takes Rahul Gandhi to court for remarks linking it to the assassination of Mahatma Gandhi. Rahul has a case in Bhiwandi in Maharashtra for allegedly blaming RSS for assassination of Mahatma Gandhi. In February 2014, Nitin Gadkari sues Kejriwal for including his name in a list of 'India's most corrupt politicians' released by Aam Aadmi Party.

It is imperative to mention here that world-over free-speech votaries are pushing to decriminalize defamation, but many democracies, including Australia, South Africa and several European nations persist with the law. Several states in Mexico and the USA still criminalise defamation. In 2010 the UK abolished criminal libel as anachronistic, recognizing that it's used less to protect reputations and more to silence dissent.

Closer home, criminal defamation in Pakistan and Bangladesh can land one in prison. As far back as 2002, the Sri Lankan government announced it was repealing its criminal defamation law, which provided for a two-year jail term and fine for media. In Zimbabwe in June 2014, the Constitutional Court of seven Judges unanimously scrapped criminal defamation from the country's statute.

Supreme Court advised Magistrates to be extremely careful in issuing summons to people accused of criminal defamation. Let me point out here that many senior lawyers and legal luminaries like former Attorney General Soli J Sorabjee feel strongly that the right remedy is civil suits seeking heavy damages for harm to reputation, not criminal provisions that can be misused to stifle free speech – and stifle media. PP Rao who is senior advocate for Rahul Gandhi says Defamation of an individual by another individual is a civil wrong, not a crime.

Rajeev Dhavan who is an eminent and senior advocate in Supreme Court points out that:
The Supreme Court judgment upholding the validity of criminal defamation squanders away a brilliant opportunity to strike down this Macaulay drafted law of 1837. The judgment, by a bench headed by Justice Dipak Misra, is verbose and clearly loses the wood for the trees. Who uses criminal defamation? Politicians against each other (Gadkari, Kejriwal, Jaitley, Subramanian Swamy, Jayalalithaa...the list is endless). This law is a playground for politicians and public persons to pulverise each other, and others. The media is an inevitable victim. Why should this playground be kept alive? Not surprisingly, the United Nations Human Rights Committee says treaty obligations require defamation to be decriminalized. It has been decriminalized so in England, some other parts of Europe, Sri Lanka and many civil law nations. Clearly, Indian law and Justice Misra's judgment are regressive, supporting the chilling effect of political and rich man's adventurism to play criminal defamation litigation games at the expense of democracy. What a disappointment!

K Parasaran who is an eminent and senior advocate of Apex Court says Duty not to commit defamation is owed to the community at large. TR Andhyarujina who too is an eminent and senior advocate of Apex Court also notes that, Protection of reputation is conducive to the public good. Free speech is not an absolute right. They too have a valid point and this is what the 2 Judge Bench of Supreme Court comprising of Justice Dipak Misra and Justice PC Pant felt and this is what they reflected in their detailed judgment.

Calling public servants a different class, the Supreme Court on May 13 upheld the validity of a provision in the CRPC allowing public servants to file a complaint in a sessions court through a public prosecutor for alleged defamatory comments on his or her official acts. In a judgment upholding the constitutional validity of criminal defamation, a Bench of Justices Dipak Misra and PC Pant rejected demands to strike down Section 199(2) to (4) of the CrPC. The court rejected the argument that this section creates a separate class. It also dismissed the contention that the classification enumerated in this provision has no rationale and does not bear constitutional scrutiny.

The Apex Court held that, A studied scrutiny of the provision makes it clear that a public servant is entitled to file a complaint through the public prosecutor in respect of his conduct in discharge of public functions. Public functions stand on a different footing...The provision gives them protection for their official acts. There cannot be defamatory attacks on them because of discharge of their due functions. In that sense, they constitute a different class.

While endorsing a public servant's right to use the State machinery to fight a defamation case against another citizen, the Apex Court reasoned, One is bound to tolerate criticism, dissent and discordance but not expected to tolerate defamatory attack. The court said this right of a public servant to file defamation complaint is over and above his or her right under Section 199 (6) to personally file a complaint before a Magistrate.

Justice Dipak Misra sought to justify it by pointing out that, Sub-section (6) gives to a public servant what every citizen has as he cannot be deprived of a right of a citizen. There can be cases where sancton may not be given by the State Government in favour of a public servant to protect his right and in that event, he can file a case before the Magistrate. To objections raised that the vague terminology used in Section 199 that any person aggrieved can file a defamation complaint would open the flood-gates for frivolous litigation, the court says this would be determined by courts in each case according to fact situation.

All said and done, all Indians have to follow and abide by what the 2 Judge Bench of Supreme court have decided on criminal defamation unless and until it is changed in review or by a larger bench of the Supreme Court. Upholding the constitutional validity of the 156-year-old penal laws on defamation, the Supreme Court rejected a bunch of pleas to decriminalize the provisions related to defamation. Sections 499 and 500 of Macaulay's Indian Penal Code of 1860 prescribes two years punishment for a person found guilty of defamation. But it must also be borne in mind that there are ten exceptions also which have been provided which are quite enough whereby the provisions of criminal defamation will not apply! Truth is the biggest defence in allegations of criminal defamation. It is the bounden duty of courts to ensure that defamation provisions are not misused but used only where extremely necessary! If this is ensured, everything else will fall in place. I have no doubt on this!

Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut - 250001, Uttar Pradesh